New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2026] NSWCA 183 — “claimable Crown Lands” — Barrister AI
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act
ABORIGINAL LAND RIGHTS — “claimable Crown lands” — whether land is — whether land is “the subject of” an application for native title determination under Commonwealth Native Title Act — native title determination applications that must not be made — land on which previous exclusive possession act done — such act includes grant or vesting of Scheduled interest — Scheduled interest includes leases of Crown lands — land claimed subject to such leases — Federal Court determination that native title extinguished — land is claimable Crown land
Quick Take
1For the purposes of s 36(1)(d) of the Aboriginal Land Rights Act 1983 (NSW), land is only 'the subject of' an application for a determination of native title under the Native Title Act 1993 (Cth) if the land can validly be the subject of such an application; land in relation to which native title has been extinguished by a previous exclusive possession act (such as the grant of a Scheduled interest) cannot validly be the subject of a claimant application under s 61A(2) of the Native Title Act and is therefore claimable Crown land.
2The Minister administering the Crown Land Management Act and the Land and Environment Court on appeal must independently determine whether a previous exclusive possession act has extinguished native title in relation to claimed land, rather than deferring that question to the Federal Court; the Federal Court's determination of extinguishment is declaratory, not constitutive.
3Sections 36(9), 36(9A) and 42 of the Aboriginal Land Rights Act 1983 (NSW) provide an internal conflict resolution mechanism that addresses the risk of inconsistency between a transfer of land under the ALR Act and a subsequent native title determination, by making any transfer subject to native title rights and interests and restricting dealings until an approved determination of native title is obtained.
